By John Wildermuth, SAN FRANCISCO CHRONICLE
August 2, 2020
Campaigns in four of the 12 initiative measures in California’s November election have sued state Attorney General Xavier Becerra, charging that his office wasn’t fair and neutral when it prepared the titles and summaries that will appear on the ballot.
Becerra has written “an argument in favor” of Proposition 16 rather than the “true and impartial statement” required by state election law, opponents of the measure said in their suit. The measure would repeal Proposition 209, a 1996 initiative banning affirmative action in public university admissions and in government contracting and hiring.
That complaint was echoed in the other suits, which argue that Becerra improperly slanted the language in those ballot titles in favor of positions he supports.
A spokesman for Becerra was unavailable for comment. In an email, his office said state law requires the attorney general to issue the official titles and summaries, adding, “We take that responsibility seriously.”
The 2020 ballot titles and summaries, along with the entire Official Voter Information Guide for the November election, are now available for review until Aug. 10 on the Secretary of State’s website. By law, any voter can challenge any of the material on display, including the ballot titles.
The title and statement that appear on the ballot “can make or break” an initiative effort, said Jamie Court, who as president of the public interest group Consumer Watchdog has been involved in many ballot measure campaigns.
“The ballot label is the billboard for your initiative,” he said. “It’s the last thing voters are going to see before they cast their ballot. In campaigns where there is not a lot of money spent for or against, it may be the only thing some voters see.”
Each of the campaigns has its own reasons for seeking to have those titles revised.
• Proposition 15 would revise 1978’s Proposition 13 to allow most commercial and industrial property to be regularly reassessed. Opponents are unhappy with the title, which says the initiative “increases funding sources for public schools, community colleges and local government services by changing the tax assessment of commercial and industrial property.”
The title of a virtually identical measure Prop. 15 backers pulled from the November ballot said it “requires certain commercial and industrial property to be taxed based on fair-market value.” If it’s a tax increase, said Jon Coupal of the Howard Jarvis Taxpayers Association, which filed the suit, “call it what it is.”
• In the Prop. 16 affirmative action battle, opponents complain that by saying in the title that the measure “allows diversity as a factor,” Becerra tilts the argument. Diversity is already allowed as a factor in school admissions and other decisions, the suit argues, and the title and summary “improperly takes sides in the election by ... leaning on the high-polling buzzword ‘diversity.’”
• Proposition 22 would reverse part of AB5, a 2019 state law granting employee rights to many gig workers, and allow Uber and Lyft drivers to work as independent contractors. Supporters say the title and summary were “infected with the contagion of bias and hostility.”
The title language saying the initiative “exempts app-based transportation and delivery companies from providing employee benefits to certain drivers” is both wrong and prejudicial, the suit argues. A more neutral title, according to the suit, would say the initiative would “change employment classification rules for app-based” drivers.
• Proposition 23 would change the rules for kidney dialysis clinics. Opponents argue the title statement that the initiative “requires on-site medical professional” for every clinic is both wrong and misleading. They say it suggests there are no medical professionals at the clinics now, although federal law requires a registered nurse to be present whenever someone is treated. The title also doesn’t note that the initiative would require a doctor to be present at all times, an expensive proposition for the clinics, the suit states.
Legal battles over ballot measures are nothing new. In 2008, supporters of Proposition 8 unsuccessfully sued then-Attorney General Jerry Brown to have the ballot title changed from his “Eliminates the right of same-sex couples to marry,” to “Only marriage between a man and a woman is valid or recognized in California.”
In 2017, Republicans looking to kill the state’s 12-cents-a-gallon gas tax for road repairs fought to change Becerra’s title, which said the GOP-backed initiative “eliminates recently enacted road repair and transportation funding,” without mentioning the tax rollback. A judge ruled that the attorney general’s title was one-sided and misleading, but was overturned on appeal.
There’s plenty of legal wiggle room in writing ballot titles, said Jessica Levinson, an election law professor at Loyola Law School in Los Angeles.
“The attorney general has a ton of discretion,” she said. “And judges are pretty deferential. It’s pretty aggressive to say (to the attorney general), ‘You’re not neutral and you’re looking to mislead the public.’”
That’s not to say campaigns don’t have a chance to make their pitch.
“We go in and the other side goes in to make our cases, telling them what are the most important parts of our arguments,” said Court of Consumer Watchdog.
But the final decision is up to the attorney general and that’s not a good thing, said Assemblyman Kevin Kiley, R-Rocklin (Placer County).
Kiley has twice sought to put constitutional amendments on the ballot that would take the responsibility for writing the ballot summaries from the attorney general and give it to the nonpartisan Legislative Analyst’s Office, which already prepares the fiscal impact statements for the ballot. Neither went anywhere. A 2017 bill lost on a party-line committee vote and a 2019 effort never even moved to committee.
“By moving the responsibility to a nonpartisan figure like the legislative analyst, the ballot is insulated from the demands of politics,” Kiley said.
The attorney general can write titles for initiatives on issues his office is already dealing with, like challenges to AB5, which sets the rules for app-based drivers that Prop. 22 is seeking to overturn. Other measures can be supported or opposed by his political allies or donors.
“This is a long-standing problem,” Kiley said. “And it’s not just about Democrats. Republican attorney generals also produced slanted titles.”
For campaigns convinced they’re on the wrong side of the attorney general’s ballot work, a change to a nonpartisan system can’t come soon enough,
“The Dodgers are always going to hate the Giants,” said Coupal, an opponent of Prop. 15. “But the umpire should have nothing to do with that.”